Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-04-14
SUPREME COURT.
Syncpses of DECISIONS Rendered at the
Present Austin Sitting.

A. ID. w luiei Cll6I luStlCe; ASSOClaJS
Justices J. W. Stayton and r. r. Gaines,
Charles S. Morse, clerk; NJ. NJ. Johnson,
bailif; Gust, Heye & Co. VS.. ". L.
Moody & Co., from Limestone county.
Opinion by Willie, c. J. The facts of
this case are as follows: On November
10, 1881, Oliver 6, Griggs sued out writ
of attachment against Bessling & Roller,
which was on the same day levied by T.
E. Jackson, Sheriff of Limestone county,
upon stock of goods in Groesbeeck, and
on the next day upon stock Of goods in
MeXia. After leVying upon the MeXia
stock, the sheriff returned to Groes-
beck. Before leaving Mexia, how
ever, upon being told that
other attachments would be there
soon he replied that J. NJ. Waller, con-
stable and MS (Jackson's) deputy, could
serve any process that he could, after
Jackson mad left writ of attachment in
favor Of the appellants against Blessing
& Roller was placed in the hands Of
Waller, who laid the same on the stock Of
goods in MeXia, and by his return showed
the writ to have been levied at II O'Clock
the 10Th inst, and the inventory was
sigGed, "T. E. jackson, Sheriff of Lime
stone county. j. NJ. Waller, Deputy"
Jackson reached GrCesbeeck on the 10th,
and al attachment in favor OF the appel
lee was placed IN his hands for levy. His
return shows that he levied upon the
GrOeSbeeck stock at l o'clock p. m, and
on the Mexia stock at 2:30 o'clock p.
H., on that day subject to the
Oliver G Griggs attachment.
The Sheriff sold the TWO stocks under Or
der OF the court, and after paying Oliver &
Griggs' claim returned the balance of the
proceeds Of the sale, $500, into court,
and the present action is brought to test
the question Of ownership. The court
below held that the goods levied upon
under the Oliver & Griggs attachment
were in CustOdia legis, and could not be
levied on again by any other officer than
the sheriff IN possession, and that the
acts of the deputy were not the acts of
the sheriff unless ratified by him, and
there was no such ratification, and judg-
ment was rendered for W. l.. Moody &
Co. It is general principle that goods
attached by one officer and il his posses
sion cannot be attached by another officer,
but the question in this case is Whather
the deputy and sheriff were different off
GERS. Our statutes provide for the ap-
pointment of deputy sherif5 with
all the powers Of the prin-
Cipal. When d writ reaches the hands OF
a deputy it is in fact received by the prin-
Cipal. The principal is responsible for
the tortious acts of his deputy, and as far
as the public is concerned the acts of the
deputy are the acts of the principal. This
is rule of common law in addition to be-
ing the true construction of our statutes.
Under these principles we can but con-
clude that the act of the Deputy Waller
was the act of the Sheriff Jackson. The
appellee cites no authorities to show that
the sheriff and his deputies are different
officers. To hold as the court below
would be to deprive the public of the ben
eft of q deputy's services. 1t may be
added in this case that the sheriff ratified
the acts of the deputy by filing his return
among the papers in the case. We are of
the opinion that the appellants levy en-
titled them to priority out of the proceeds
OF sale after Oliver & Griggs' attachment,
which latter could be required to
exhaust the Groesbeeck stock before
gong against the MeXia stock. There
was 10 error in the rulings of the court
below that the appellants writ was
rightly sued out, as the note sued on was
subsequently found to be less than their
claim. For the errors pointed out tie
| Judgment will be reversed and rendered
for the appellants for the whole amout of
money in the hands of the clerk Of Lime
stone county, after satisfying any costs
against, and it is so ordered.
| Robert D. Moore VS.. Mary A. Hazel
wood. Appeal from Falls county.
| Opinion by StaytoD, j. This action was
brought by w. W. Lakewood against
Robert Moore to recover Gu two
| promissory notes given by the latter as
part purchase money for tract of land.
The present parties are the Representa-
tives of the original parties. The
consideration for the land was $3.50 of
which $135 had been paid, and this
action is to recover the balance. After
setting forth the description by metes
and bounds, the words containing 100
acres" occur. The answer alleged q fail
ure of consideration, as there were only
about twenty-three and one-half acres
which could pass by this deed. 2. That
the tract of land was supposed by vendor
and vendee to be 800 varas wide, when it
was only about seventy varas. 8. That
all the land intended to be conveyed did
not then nor had ever belonged to the
vendor, aud the price agreed on was q
fair value of 100 acres. 4. That the land
wss situated in prairie, and the courses
could only be marked by measuring from
points in other surveys. The deed was
one with special warranty. We think
| that the demurrer to the answer was i'm
properly sustained. If the averments Of
the answer are true it is evident that
| both parties acted under q mistake
IN regard to the dimensions of the land
This is not case in which title to ali the
land embraced within the boundaries
given in the deed did pass, which, how
ever, was afterwards found to embrace q
less area; but it is 8 case in which there
was mutual mistake as 10 boundaries OF
surveys called for whereby title to all the
land described in the deed did not pass
Against mistakes of this kind court of
equity will give relief The special war
ranty clause does not touch the question,
as this is not based on a breach of war
ranty. The defense is one that could be
urged at any time when the vendor seeks
to recover the purchase money that would
j be due had the contract not been made
| under mutual mistake as to q matter